MICHAEL C. DUFFEY, Appellant
WORKERS' COMPENSATION APPEAL BOARD (TROLA-DYNE, INC.), Appellees
ARGUED: September 14, 2016
from the Order of the Commonwealth Court at No. 1840 CD 2014
dated 6/26/15 affirming the decision of the Workers'
Compensation Appeal Board at Nos. A13-0229 and A13-1158 dated
issue in this workers' compensation appeal is ultimately
whether a notice of compensation payable closely
circumscribes the range of health-related conditions to be
considered in impairment rating evaluations.
Michael C. Duffey ("Claimant") sustained injuries
to his hands when he picked up electrified wires while
repairing a machine for Appellee, Trola-Dyne, Inc.
("Employer"). Employer issued a notice of
compensation payable (the "NCP") per Sections 406.1
and 410 of the Workers' Compensation Act,  77 P.S.
§§717.1, 731, which indicated that the "[b]ody
[p]art(s) affected" were "bilateral hands";
the type of injury was "electrical burn"; and the
description of the injury was "stripping some electrical
March 6, 2011, after Claimant had received benefits for total
disability for a period of 104 weeks, Employer requested an
impairment rating evaluation pursuant to Section 306(a.2)(1)
of the Act, 77 P.S. §511.2(1). In its request for
designation of a physician to perform the evaluation per the
applicable administrative regulations, see 34 Pa.
Code §123.104, Employer described the underlying
compensable injury as "bilateral hands-nerve and joint
months later, Claimant submitted to an impairment rating
evaluation (the "IRE") by Bruce E. Sicilia, M.D.
(the "Physician-Evaluator"), a specialist in
physical medicine and rehabilitation. The Physician-Evaluator
assigned a whole-body impairment rating of six percent,
prompting Employer to issue a notice informing Claimant that
his disability status would change from total to
partial. This modification did not decrease the
amount of Claimant's weekly benefits, see 77
P.S. §511.2(3) ("Unless otherwise adjudicated or
agreed to based upon a determination of earning power . . .,
the amount of compensation shall not be affected as a result
of the change in disability status and shall remain the
same."), but instead, had the effect of limiting
Claimant's receipt of benefits to a 500-week period,
see id. §512(1) (prescribing that partial
disability benefits are to be paid "for not more than
five hundred weeks").
proceeded to file a review petition attacking the validity of
the IRE. Claimant did not aver that there had been a
determination that he actually met the threshold impairment
rating of at least 50 percent, as facially is required to
support a challenge to an IRE under Section 306(a.2). See
id. §511.2(4) ("An employe may appeal the
change to partial disability . . . [p]rovided, [t]hat there
is a determination that the employe meets the threshold
impairment rating that is equal to or greater than fifty per
centum impairment[.]"). Nevertheless, Claimant proceeded
under prevailing Commonwealth Court precedent holding that
such requirement does not pertain where the challenge is
lodged, as it was here, within 60 days after the employer
provides the claimant with notice of the status change from
total to partial disability. See Barrett v. WCAB (Sunoco,
Inc.), 987 A.2d 1280, 1288-89 (Pa. Cmwlth.
2010). It was Claimant's position that the
Physician-Evaluator had failed to rate the full range of
work-related injuries, since Claimant suffered from
adjustment disorder with depressed mood and chronic
post-traumatic stress disorder as a result of his work
hearings before a workers' compensation judge (the
"WCJ"), Claimant adduced his own testimony
concerning the circumstances surrounding his injury and his
initial and ongoing symptoms and treatment. According to this
testimony, Claimant developed, and continued to experience,
impairment in the use of his hands, agonizing deep pain, and
debilitating exhaustion. See, e.g., N.T., Dec. 16,
2011, at 7-8.
later supplemented the record with deposition testimony from
his family physician, Debra A. Bell, M.D., who had diagnosed
Claimant with the adjustment disorder with depressed mood and
chronic post-traumatic stress disorder and treated him for
such conditions. See Deposition of Debra A. Bell,
M.D., dated Mar. 20, 2012, in Duffy v. Trola-Dyne
Inc., No. 3485314 (DLI, Bur. of Workers' Comp.), at
16, 18. Claimant also introduced deposition testimony from a
neurologist, Scott M. Cherry, M.D., who attested that
Claimant's injury had evolved into a disabling, chronic
neuropathic pain syndrome attended by emotional and cognitive
changes. See Deposition of Scott M. Cherry, M.D.,
dated Dec. 9, 2011, in Duffy, No. 3485314, at 14,
16, 19, 33.
presented the Physician-Evaluator's testimony supporting
the rating evaluation that he conducted. The
Physician-Evaluator explained that, in addition to accounting
for Claimant's physical condition, he also considered
Claimant's complaints of pain, encompassing
"work-related chronic neuropathic pain syndrome, "
Deposition of Bruce E. Sicilia, M.D., dated July 27, 2012, in
Duffy, No. 3485314, at 23, 25, rating the condition
according to a sensory impairment table provided in the
governing impairment guidelines, see id. at 24.
See generally 77 P.S. §511.2(1) (keying
impairment rating evaluations to "the most recent
edition of the American Medical Association 'Guides to
the Evaluation of Permanent Impairment'"). According
to the Physician-Evaluator, however, the rating did not
account for asserted work-related adjustment disorder or
post-traumatic stress syndrome. In this regard, the
Physician-Evaluator offered the following explanation:
I am not a psychiatrist and I don't have appropriate
skills, if you will, to do that type of assessment. And I was
specifically asked to assess his electrical burn injuries and
I did that.
of Bruce E. Sicilia, M.D., dated July 27, 2012, in
Duffy, No. 3485314, at 31.
clinical and forensic psychiatrist, Timothy J. Michals, M.D.,
also testified, via deposition on Employer's behalf, that
he had evaluated Claimant and concluded that he had recovered
from the adjustment disorder with anxiety and depressed mood.
See Deposition of Timothy J. Michals, M.D., dated
Aug. 1, 2012, in Duffy, No. 3485314, at 26-27. Dr.
Michals further expressed his disagreement with the diagnosis
of post-traumatic stress disorder. See id. at 32-34.
accepted Claimant's evidence as credible and rejected
Employer's conflicting evidence, directed that
Claimant's psychological conditions should be added to
the notice of compensation payable, and determined that the
IRE was invalid, because the Physician-Evaluator had not
addressed those conditions. Accordingly, the WCJ also found
that the total-disability status assigned to Claimant's
benefits could not be modified.
appeal, the Workers' Compensation Appeal Board reversed
the decision to invalidate the IRE, reasoning that a
physician-evaluator may properly limit an impairment rating
evaluation according to the accepted injuries as reflected in
a notice of compensation payable. Along these lines, the
Board observed that Claimant had not sought to amend the NCP
to include additional injuries in a timely fashion, but
instead, waited to do so until almost six months after the
IRE was performed. The Board thus held that the six percent
impairment rating assigned by the Physician-Evaluator was
valid and, accordingly, modified the status of Claimant's
benefits from total to partial disability.
further appeal, the Commonwealth Court affirmed the
Board's order in a published opinion. See Duffey v.
WCAB (Trola-Dyne, Inc.), 119 A.3d 445 (Pa. Cmwlth.
2015). From the outset of its analysis, the intermediate
court emphasized that Section 306(a.2) requires a
determination of the degree of impairment "due to
the compensable injury." Id. at 450
(emphasis in original). The court then focused most of its
remaining analysis on the "compensable injury"
component of this phrase, explaining that the notice of
compensation payable establishes the description of the work
injury. See id. at 451 (quoting Harrison v. WCAB
(Auto Truck Transp. Corp.), 78 A.3d 699, 703 (Pa.
Cmwlth. 2013)). In light of this approach -- and given that
an impairment rating evaluation involves an assessment of a
claimant's condition at the time of the evaluation,
see id. (quoting Westmoreland Reg'l Hosp. v.
WCAB (Pickford), 29 A.3d 120, 128 (Pa. Cmwlth. 2011)) --
the court indicated that "the focus in determining the
validity of an [impairment rating evaluation] is on the state
of the claimant and the compensable injury, as described
in the [notice of compensation payable] at the time the
[impairment rating evaluation] is performed."
Id. (emphasis in original).
distinguishing several previous decisions, the Commonwealth
Court expressed its disinclination to "believe that the
General Assembly intended to nullify an already performed and
otherwise valid IRE by claims of new or additional injuries
that were not yet determined to be work-related and,
therefore, would not have been addressed by the [evaluating]
physician." Id. at 452. To hold otherwise, the
court posited, would contravene the reform goals of the 1996
amendment to the WCA which had implemented Section 306(a.2).
See id. at 452-53.
these lines, the Commonwealth Court suggested that a contrary
holding would encourage claimants to effectively sabotage
impairment rating evaluations. See id. at 453
("The delay in adding injuries as a litigation strategy
to defeat an [impairment rating evaluation] performed under
Section 306(a.2) does not serve the purpose of the IRE
process or the 1996 Amendments to the Act."). In this
respect, the intermediate court stressed that an employer has
only a single opportunity to obtain a self-executing change
of a claimant's status from total to partial disability.
See id. ("Claimant's position would
effectively strip Employer of its only opportunity to obtain
a self-executing change in disability status, by adding
injuries to the [notice of compensation payable] after the
IRE is performed and having the IRE declared invalid.").
According to the court, claimants should be encouraged to be
proactive in updating notices of compensation payable so that
their constellation of injuries can be considered in
impairment rating evaluations. See id.
the outcome of this case to be controlled by straightforward
statutory interpretation, a matter over which our review is
plenary. See, e.g., Fish v. Twp. of Lower
Merion, __Pa.__, __, 128 A.3d 764, 769 (2015). At the
outset, we reiterate that a pervasive focus on
"compensable injury" has obscured an important
aspect of the governing statute. See supra note 5.
In this regard, Section 306(a.2) explicitly invests in
physician-evaluators the obligation to "determine the
degree of impairment due to the compensable injury,
" 77 P.S. §511.2(1) (emphasis added). Per such
express terms, a physician-evaluator must consider and
determine causality in terms of whether any particular
impairment is "due to" the compensable injury.
Id. Moreover, the required evaluation is of
"the percentage of permanent impairment of the whole
body resulting from the compensable injury." 77
no difference with the Commonwealth Court's reasonable
holding that a notice of compensation payable should define
"compensable injury" for purposes of this inquiry.
Such recognition, however, simply does not determine the
range of impairments which may be "due to" such
injury. Under Section 306(a.2) and the applicable impairment
guidelines, the physician-evaluator must exercise
professional judgment to render appropriate decisions
concerning both causality and apportionment. See
id.; accord Am. Med. Ass'n, Guides to the
Evaluation of Permanent Impairment, Ch. 2, Introduction (6th
ed. 2009) (the "AMA Guides") ("Physicians must
use their clinical knowledge, skills, and abilities to arrive
at a specific diagnosis; define the pathology; and rate
impairments based on the Guides'
noteworthy that causation, for purposes of the AMA Guides, is
assessed, in the first instance, by reference to an
"event" rather than an "injury, " thus
creating some potential tension with Section 306(a.2)'s
focus on causal association with a compensable injury.
See AMA Guides §2.5b ("Causality is an
association between a given cause (an event capable of
producing an effect) and an effect (a condition that can
result from a specific cause) with a reasonable degree of
medical probability."). But cf. id. Ch. 2,
Introduction (depicting the AMA Guides as a "tool to
translate human pathology resulting from a trauma or disease
process into a percentage of the whole person").
Accordingly, there may be some basis in the AMA Guides
permitting a physician-evaluator to attribute a
claimant's psychological disorders to the event in which
the claimant was was injured, rather than to the compensable
injury itself. Again, however, a physician-evaluator simply
may not entirely disavow any and all responsibility to
consider causality relative to a given condition.
See 77 P.S. §511.2(1).
it is apparent from the record that the Physician-Evaluator
did not apply professional judgment to assess (or, per the
applicable regulations, arrange for an assessment of) the
psychological conditions identified by Claimant during the
IRE examination; nor did he determine whether such
conditions as might have been diagnosed were fairly
attributable to Claimant's compensable injury. Instead of
abiding by the directives of Section 306(a.2) and the AMA
Guides in such regards, the Physician-Evaluator purported to
take a different set of instructions from Employer.
See Deposition of Bruce E. Sicilia, M.D., dated July
27, 2012, in Duffy, No. 3485314, at 31 ("I was
specifically asked to assess his electrical burn injuries and
I did that."). Proceeding as such, the
Physician-Evaluator simply ignored a range of potential
diagnoses and impairments. See, e.g., id.
at 15 (reflecting the evaluator's testimony that
Claimant's depression "was not rateable [sic] at the
time because I was not asked to rate it."
(emphasis added)). Again, however, the Physician-Evaluator
was bound to take his guidance, not from Employer, but from
Section 306(a.2) and the AMA Guides. See AMA Guides
§2.3b ("As an impairment evaluator, the physician
must understand the regulations pertaining to medical
practice and evaluation."); id. Chapter 2,
Introduction ("Physicians must use their clinical
knowledge, skills, and abilities to arrive at a specific
diagnosis; define the pathology; and rate impairments based
on the Guides' criteria.").
Commonwealth Court's opinion may reflect a pragmatic
approach in requiring claimants manifesting psychological
symptoms deriving from a compensable injury to address the
causality question in advance of an impairment rating
evaluation. There may obviously be an attendant concern that
the alternative is to require psychological assessments in
the broader range of impairment rating evaluations.
are competing considerations involved, however. For example,
injuries often are depicted briefly, and even cryptically, on
notices of compensation payable.Furthermore, benefits
ultimately cease as a result of an unfavorable rating
evaluation, although a claimant may remain, in conventional
terms, totally disabled and unable to provide for his or her
own well-being. See generally IA Constr., __Pa.
at__, 139 A.3d at 155 (discussing the distinction between
impairment and disability in terms of the focus of the latter
term on loss of earnings capacity); AMA Guides §2.3b
(reflecting that the object of the impairment rating process
is "to enable a fair and competent determination of
benefits to which the [subject of the evaluation] may be
per the AMA Guides, as a matter of clinical judgment, a
physician-evaluator may, where appropriate, treat the
impairment rating pertaining to a particular organ or body
system as encompassing a whole body assessment. See
AMA Guides §§2.2a, 14.1c (reflecting the general
rule that "[t]he psychological distress
associated with a physical impairment is . . . included
within the rating" for a physical condition
(emphasis in original)). In point of fact, the AMA Guides
rather pointedly discourage separate treatment of
psychological effects. See AMA Guides §14.1c
("In most cases of a mental and behavioral disorder
accompanying a physical impairment, . . . the
mental and behavioral disorder chapter should not be
used." (emphasis added)). In this regard, it
devolves to the physician-evaluator's sound professional
judgment whether, and under what circumstances, psychological
conditions effectively graduate to distinct consideration per
the AMA Guides' mental-and-behavioral-disorders
events, the evaluative judgment is the touchstone on these
subjects, as well as on the topic of causality. In the
present case, since the Physician-Examiner failed to exercise
such judgment based on a misunderstanding concerning the
scope of his responsibilities, the WCJ did not err in
invalidating the IRE.
dissenting opinion authored by Justice Wecht chastises this
opinion on multiple fronts, asserting that we have: exceeded
the scope of the issues presented; ignored the statutory
definition of "impairments"; compromised the
impairment-rating process; inappropriately misallocated
decision-making responsibility relative to causation from
workers' compensation judges to physician-evaluators; and
disregarded the significance of the fourth edition of the AMA
Guides to the Evaluation of Permanent Impairment.
the issue preservation concern, Justice Wecht characterizes
the question presented as a narrow one limited to the
Does an amendment that expands the injury description on a
notice of compensation payable ("NCP") invalidate
an impairment rating evaluation ("IRE") that was
conducted before the amendment?
Dissenting Opinion, slip op. at 1 (Wecht, J.). In
point of fact, however, the issue accepted for review is
framed in a considerably different fashion, see Duffey v.
WCAB (Trola-Dyne, Inc.), __Pa.__, __, 131 A.3d
480, 481 (2016) (per curiam), as are the arguments
in Claimant's brief.
as we have previously explained, the issue statement and
Claimant's arguments are clouded by a conflation of the
terms "injury" and "impairment, " see
supra note 5, Claimant's brief otherwise makes clear
that he is advancing the position that a physician-evaluator
has an obligation "to address all work-related
conditions at the time of the evaluation." Brief
for Appellant at 19 (emphasis added).
Unfortunately, the difficulty with the terms
"injury" and "impairment" arises from the
complexity of these overlapping and intersecting -- but also
diverging -- concepts. See, e.g., supra
note 10. Indeed, such conflation appears to be
quite common. See, e.g., Dissenting Opinion,
slip op. at 1 (Wecht, J.) (incorrectly asserting
that the holding of this opinion is that physicians must
assess all of the claimant's "injuries, " when
in point of fact, we have repeatedly explained that the
statutorily prescribed duty is simply to assess "the
degree of impairment due to the compensable
injury" on a "whole body" basis, 77 P.S.
§511.2(1), (8)(ii) (emphasis added)).
more general observation, a Court of last resort must have
some leeway to make rational judgments and pronouncements
that are not strictly confined according to the precise
letter of parties' arguments. Otherwise, the law would be
shaped according to the nuances of the litigants'
presentations, including the extremes toward which they
sometimes press their positions within the adversary system.
Such latitude is particularly appropriate in matters
involving statutory construction, where the language of the
governing statute ultimately must remain the polestar for
rulings having widespread application. Again, from our point
of view, Claimant's position sufficiently implicates a
plain-meaning interpretation of Section 306(a.2), and ...